Tag Archives: culture wars

answering the most sympathetic and reasonable arguments against same-sex marriage

I found the Marriage Conservation Facebook page when one of my FB friends linked to something “hateful” posted there. And it’s true, you don’t have to read very far to find nasty comments cloaked in self-righteousness.

But that’s not what I found interesting.

In general, I try to discourage my friends from winding themselves up by seeking out other people’s bile. Once in a while I run into some blessedly innocent person who doesn’t understand the depth of irrational hatred in the world, and who (sadly) needs to be disillusioned a little. But I believe that for most of us, the idea that there are crazy, nasty, ugly people on the other side comes to mind far too easily.

What’s harder to hold in mind is all the good, decent, well-meaning people who are trying their best to do the right thing, but happen to believe something different than I do or you do.

There always are such people, and they often form the majority of the opposition. This is true even if you are 100% right. Human beings are fallible, we’re loath to discard familiar attitudes, and the opportunities for rationalization to derail clear thinking are innumerable. (That’s true for me and the people who agree with me, too.) So recognizing the fundamental humanity of your opponents doesn’t mean you have to compromise with them or pretend that their points have more validity than you think they really do.

Failing to see the well-intentioned people on the other side is also counter-productive. Because the more an argument becomes dominated by hate and angry condemnations of hate, the more convinced the well-meaning people will be that they must be right. After all, if the points they find convincing were answerable, surely people would be answering them, rather than tarring them by association with the bigots or the self-righteous types whose best argument is something like “I just talked to God and He agrees with me.”

So let’s consider some of the points that the more reasonable folks who post to Marriage Conservation find compelling. There are basically two types: testimonies and statistics.

Testimony. One kind of article that has been showing up more and more often lately is the testimony of a young adult raised by same-sex parents. Marriage-equality advocates been using such testimonies effectively for some time, and Justice Kennedy (who is likely to be the deciding vote when the Supreme Court rules on this issue later this year) has said:

There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?

I write because I am one of many children with gay parents who believe we should protect marriage. … I’d like to explain why I think redefining marriage would actually serve to strip these children of their most fundamental rights.

Faust goes on to say that she loves her mother and her mother’s partner, but the debate about marriage shouldn’t hinge on “lessening emotional suffering within the homosexual community”

This debate, at its core, is about one thing. It’s about children.

“There is no difference between the value and worth of heterosexual and homosexual persons,” Faust writes.

However, when it comes to procreation and child-rearing, same-sex couples and opposite-sex couples are wholly unequal and should be treated differently for the sake of the children.

When two adults who cannot procreate want to raise children together, where do those babies come from? Each child is conceived by a mother and a father to whom that child has a natural right.

She then talks about “the missing parent”. In her case she was raised by two mothers, but her parents’ divorce distanced her from her father. The authenticity of that yearning is what gives her testimony its emotional punch. I’m sure that when same-sex-marriage opponents read her article, they come away with a strong desire to protect children like Katy.

But … what does her testimony have to do with same-sex marriage? The problem here is divorce, not gay or lesbian relationships. Children of divorce often miss their non-custodial parent. It’s a sad situation, whether the custodial parent stays single or re-marries someone of either gender.

If you follow Faust’s argument where it logically goes, rather than just to the place that’s politically expedient, you’ll pay no attention to same-sex marriage and instead work to make it much harder for parents to divorce, and to force men to marry women they get pregnant. That would really enforce a child’s “natural right” to both biological parents.

Lying behind Faust’s argument (and many others like it) is an idealistic view of sex and child-bearing that is beautiful in its way: In the ideal world, there would be no unwanted pregnancies. Every conception would result from an act of love between two people committed to each other and to the life they might bring into the world. The parents would be mature enough and self-aware enough to make that commitment and see it through, and Life or God or Fate would cooperate by letting them live long enough to do it.

Unfortunately, though, that vision is disconnected from the world where we actually live — disconnected, in fact, from any world where anyone has ever lived. Selectively imposing pieces of that vision on gay and lesbian couples because they are an unpopular minority is unfair.

It also would be ineffective; there is no reason to believe that banning same-sex marriage would move the children of America closer to that vision in any way. In a world where no one had ever heard of same-sex marriage, Katy Faust’s parents would still get divorced and she would still grow up without her “natural right” to live with her father. And nothing Justice Kennedy does or avoids doing will fix that for future Katy Fausts.

Who redefined marriage? I keep going back to what Dan Savage told Chris Hayes a few years ago: It isn’t that gay people want to redefine marriage, it’s that straight people have already redefined marriage in such a way that there’s no longer any coherent argument for keeping gay couples on the outside.

I am one of those straight people. My wife and I have been married for 30 years, but (though we dearly love some of our friends’ children), we decided not to have a child of our own. For us, as for many childless-by-choice couples, marriage has been about forming a life-long partnership. A strong marriage partnership is indeed a good setting to raise children; but these days, whether a married couple will raise children or not is a separate decision.

Among straights, child-raising has not been the defining characteristic of marriage for at least a generation. To make it the defining characteristic again only when we consider same-sex couples is unfair.

Maybe you want to roll marriage back to the 1960s, before Governor Reagan signed California’s no-fault divorce law (or even to the 1800s, when wives couldn’t own property). If so, be honest about it and go after the people who are really responsible for the changing expectations about marriage: divorced or never-married straights with children, and married straights without children. Try using the law to impose your will on them. See for yourself how popular that would be.

Sullins looks at data collected by the National Health Interview Study between 1997 and 2013. His sample includes 207,007 children, of whom 512 came from households where the adults in the household were same-sex couples. (The study has no data on whether the couples were married. Given the legal situation during most of the period in question, the vast majority of them probably weren’t.) He finds that

Emotional problems were over twice as prevalent … for children with same-sex parents than for children with opposite-sex parents.

Mark Regnerus — author of a similar study a few years ago — interprets Sullins’ results to say “Kids do best with Mom and Dad.” In other words, “biology matters”; the more biological parents a child lives with, the better (on average). And since a same-sex couple at best contains only one of a child’s biological parents, it starts out at a disadvantage.

There are, of course, a number of studies that say the opposite: that all other things being equal, children raised by same-sex couples on average do as well or better than those raised by opposite-sex couples.

What the debate ultimately comes down to is what it means for all other things to be equal, because they seldom are in any literal sense. We live in a society where biological parents get the first shot at raising a child. If they are a committed couple who are willing and able to do the job, no one can stop them or even wants to stop them. So when you study children being raised by someone other than both biological parents, you are often looking at a child for whom something has gone wrong. There may have been a divorce, a death, a desertion, a parent in prison, abuse, a series of foster homes, or an involved custody battle — maybe several of those things.

If you are looking at the emotional well-being of those children as a measure of the the quality of the parenting they are receiving in their current homes, you need to compare them to similar children in other homes. If, say, my wife and I were to adopt a six-year-old from an orphanage in Indonesia, a few years later it might be fair to compare our child to other children adopted at a similar age from similar orphanages — but not to children raised from birth by American parents.

Most studies of same-sex parenting do some similar kind of data-normalization, so that, say, children of divorce are compared to other children of divorce, and so on. But Regnerus argues explicitly for not adjusting the raw data to make apples-to-apples comparisons.

You can make the children of same-sex households appear to fare fine (if not better), on average, if you control for a series of documented factors more apt to plague same-sex relationships and households: relationship instability, residential instability, health and emotional challenges, greater economic struggle (among female couples), and—perhaps most significantly—the lack of two biological connections to the child. If you control for these, you will indeed find “no differences” left over. Doing this gives the impression that “the kids are fine” at a time when it is politically expedient to do so.

This analytic tendency reflects a common pattern in social science research to search for ‘‘independent’’ effects of variables, thereby overlooking—or perhaps ignoring—the pathways that explain how social phenomena actually operate in the real world.

What he is arguing, in other words, is that same-sex couples who are raising children ought to be held responsible for how their children got into this situation, whether they had anything to do with it or not.

For example, suppose a husband deserts his wife and children for another woman, and the wife later finds a committed partner who is female. Regnerus and Sullins would assign the emotional baggage of the desertion to the wife who stayed and the woman who took on the challenge of helping her, not to the opposite-sex household of the man who actually deserted. The impact of bigotry on the same-sex household (which might have something to do with why lesbian couples on average make less money than couples that include a man) is also their responsibility, not the responsibility of those who discriminate against them.

I suspect it wouldn’t be hard to do a Sullins-type study about the emotional problems and developmental difficulties faced by children raised by black parents. Blacks parents, on average, are poorer than white parents. They have lower academic achievement, are more likely to live in neighborhoods with bad schools, and so on. Maybe those factors shouldn’t be normalized out of the statistics by which we judge black parents, because they are “the pathways that explain how social phenomena actually operate in the real world.” Maybe they should instead be arguments for not letting blacks raise children at all, or not letting them get married. Maybe solidly middle-class black couples with good educations should be considered suspect because of the statistics associated with their race.

Or not. Maybe if two men find a willing surrogate mother to bear a child for them, and then raise that child from birth to adulthood in a loving household, they shouldn’t have to answer for statistics shaped by divorce and desertion — as Regnerus and Sullins would have them do.

Magic. Lying behind the Sullins and Regnerus studies is the same kind of magical thinking that Katy Faust demonstrates: If only we made same-sex relationships more arduous, then opposite-sex relationships would miraculously improve. Through some benevolent act of God, there wouldn’t be any more unwed mothers or divorces or households so toxic that the state had to intervene. Those things are all the fault of homosexuals, so of course we shouldn’t factor them out of the statistics when we judge the children they are raising.

I’ve never met Sullins or Regnerus or talked to anybody who has, so I have no idea what motivates a person to devote his career to constructing such studies. But the people who are impressed with those studies and quote them to others, I suspect, are mostly well-intentioned folks. And if Faust is some kind of hater, she hides it really well. I can easily sympathize with her wish that her mother and father had done a better job with their marriage, so that Faust need never have gone through the disruption of their divorce.

But the problems of opposite-sex relationships belong to opposite-sex couples. Making life harder for gay people won’t solve them.

And whether it would happen in your ideal world or not, same-sex couples are raising children. Some are adopting children whose biological parents can’t or won’t raise them. Some are working with doctors and friends to conceive children that they will raise from birth. And some are keeping faith with the children they had in a previous opposite-sex relationship that failed.

In the vast majority of those cases, if they gave those children up something worse would happen to them. And if you make life harder for those couples, you can’t avoid making life harder for their children. Who would that benefit?

If you think someone would benefit, I don’t automatically see you as a hate-filled bigot. But I can’t figure out who you’re picturing. It can’t be Katy Faust, or any of the other victims of failed opposite-sex relationships. And if not them, then who?

Chait began by recounting an incident that really is objectionable: A Muslim man at the University of Michigan wrote a column for the campus conservative newspaper of the sort that campus conservatives think is clever, a spoof of someone from a marginalized group looking for things to be offended by. Not my cup of tea (or probably Chait’s either, for that matter) but what upset Chait was the reaction: Four people littered the steps of the student’s apartment building with copies of his column written over with insulting and hostile messages.

Up to that point, Chait was on firm ground; that kind of intimidation isn’t an appropriate response. But from there he segued into a stream of conservative tropes:

Political correctness is a style of politics in which the more radical members of the left attempt to regulate political discourse by defining opposing views as bigoted and illegitimate. Two decades ago, the only communities where the left could exert such hegemonic control lay within academia, which gave it an influence on intellectual life far out of proportion to its numeric size. Today’s political correctness flourishes most consequentially on social media, where it enjoys a frisson of cool and vast new cultural reach. And since social media is also now the milieu that hosts most political debate, the new p.c. has attained an influence over mainstream journalism and commentary beyond that of the old.

I have observed several times before that the actual essence of the Obama era’s “post-racial” politics is: white people calling other white people racist. The true icons of racial politics in our era are not a fiery Jeremiah Wright or Jesse Jackson or even Al Sharpton, taking the white man to task for keep black folk down. No, it is the average Obama voter—a left-leaning, college-educated white person like, well, like Jonathan Chait, who uses his support for Obama and the Democrats’ agenda as evidence of his enlightenment, which in his mind makes him superior to Obama’s critics, who must be motivated by insidious, secret racism. … So you can see Chait’s dismay at seeing good white “liberals” have their Not Racist credentials challenged by those who are farther out on the left. Don’t they know how the system is supposed to work?

Because that whole “racism” thing is such a scam in the post-Jim-Crow era, when we all have equal opportunities and are treated the same wherever we go.

I thought about writing my own Chait-response article, but other liberals — mostly people Jonathan Korman linked to on Facebook (thanks!) — have been doing a better job than the first ideas that occurred to me, so I’ll mostly just link to them and decide at the end whether I have anything worth adding.

My problem with Chait is simple: As long as we’re not talking vandalism or violence or physical intimidation — and we’re not, in almost all of the cases he mentions other than that first one — saying that somebody’s view is “bigoted and illegitimate” is just as much an exercise of free speech as whatever that person said in the first place.

People like Chait also don’t merely want to be allowed to say whatever they wish about whomever they wish for the sake of debate itself. Because he can already say whatever he damn well pleases! Look at him go! What he wants is the right to both say things which are offensive to some people and remain a liberal in good standing once he has said them. This is a stupid right which no one should have. … Chait wants to say offensive things and not be criticized.

And for Chait to write off such objections as “political correctness” … doesn’t that label represent the same kind of de-legitimization he is objecting to? But Vox‘s Amanda Taub has that covered:

First things first: there’s no such thing as “political correctness.” The term’s in wide use, certainly, but has no actual fixed or specific meaning. What defines it is not what it describes but how it’s used: as a way to dismiss a concern or demand as a frivolous grievance rather than a real issue.

Chait identifies a long list of disputes that he describes as examples of “p.c.” demands that are hurting mainstream liberalism. But calling these concerns “political correctness” is another way of saying that they aren’t important enough to be addressed on their merits. And all that really means is that they’re not important to Jonathan Chait.

Because it’s up to white men (like me and Chait) to decide whether your concerns deserve attention, or if you’re just being too sensitive. We’ll let you know what we decide, but until then try to keep the noise down so that you don’t disturb the neighbors.

Anti-war activist Fredrik deBoer offered a more nuanced opinion: Chait may be full of it, but that doesn’t mean there’s no problem in left-wing discourse. He described a series of situations where he’s seen left-wing groups chase away potential young recruits by coming down way too hard on them the first time they say something that offends a marginalized group — which is bound to happen, because marginalized groups have been marginalized; if you don’t belong to the group, you probably have never been taught how to consider their point of view, and you won’t figure it out until you go through a certain amount of well-intentioned trial and error. In the long run, might it be more productive to point out and correct those errors in a nicer way?

I don’t want these kids to be more like Jon Chait. I sure as hell don’t want them to be less left-wing. I want them to be more left-wing. I want a left that can win, and there’s no way I can have that when the actually-existing left sheds potential allies at an impossible rate. But the prohibition against ever telling anyone to be friendlier and more forgiving is so powerful and calcified it’s a permanent feature of today’s progressivism. And I’m left as this sad old 33 year old teacher who no longer has the slightest fucking idea what to say to the many brilliant, passionate young people whose only crime is not already being perfect.

An interesting detail: In deBoer’s examples, the people coming down hard on the newcomers are themselves from privileged backgrounds, which suggests that a cycle-of-abuse thing might be going on: I got hazed when I joined the movement, so I’ll be damned if I let you get away with anything.

For people accustomed to seeing their opinions greeted with everything from dismissive condescension to harassment and death threats, a successful writer complaining from a perch at New York magazine about his friends being “bludgeoned… into despondent silence”—because people are mean on social media—simply sounded whiny. Chait also moves a bit too seamlessly from real, honest-to-God censorship by public institutions to more informal social pressure in a way that makes it sound like he’s conflating them—claiming that criticism is somehow tantamount to censorship or repression.

But then he goes deeper. Every movement, Sanchez says, needs to watch out for a certain discussion-constraining dynamic: When the group’s extreme fringe takes its good ideas too far, it’s a thankless job for anyone within the movement to say, “Hey, wait a minute.” So instead, that criticism winds up being made by opponents, who just want to shut the group down. And once that starts happening, any insider who raises a similar point is siding with the enemy, and implicitly endorsing the whole ream of bogus criticisms enemies raise.

When teetotalers are the only ones willing to say “maybe you’ve had one too many,” because your friends are worried about sounding like abstemious scolds, the advice is a lot easier to dismiss. Which is fine until it’s time to drive home.

You see this dynamic, in fact, with the response to Chait’s essay: Progressives who think maybe he’s kinda-sorta got a point quickly move on, ceding the field to those who want to revoke his ally card and conservatives eager to welcome him, at least for the next ten seconds, to “their” side. … And this makes it still easier to conclude that nothing interesting or valuable is lost by any self-censorship that may be occurring. We know what the counterargument looks like, after all: It’s the garbage those assholes are spouting. Discourse gets increasingly polarized and, in the process, stupider. Which, again, seems like a bad outcome even if you don’t particularly care whether Jon Chait gets his feelings hurt.

So, do I have anything to add to that? Maybe I’ll just kibbitz a little to resolve the apparent contradiction between two people I think are both right: Taub saying PC doesn’t exist and Waring talking about it as a real thing that has positive value.

Political correctness. The bizarre liberal belief that whites, men, straights, Christians, the rich, and other Americans in positions of privilege should treat less privileged people with respect, even though such people have no power to force them to.

Removing the snark: political correctness is the attempt to extend to powerless people the same kind of courtesy that powerful people can take for granted.

Just as an example, suppose you work for a large corporation and somehow find yourself talking to the Big Boss. Maybe you’re on an elevator together or standing in line next to him at the cafeteria, hard as that is to imagine. Naturally, the wheels in your head are spinning as you try to imagine his point of view, so that nothing you say or do will accidentally offend him. But if you were in a similar situation with a janitor or some other person of low rank, you probably wouldn’t work your empathy nearly so hard.

Maybe you should. Or maybe you should at least work your empathy harder than most of us usually do.

Extend that to groups. When you belong to a powerful group — say, men or whites or straights or something similarly normative in our culture — you can take for granted that nearly everyone you run into has a general appreciation of your point of view and knows better than to piss you off in obvious ways. Members of marginalized groups can’t assume that. They’re constantly being jostled or hassled or put on the spot; occasionally by haters, but more often by ordinary folks who can’t be bothered to think too hard about them. PC is the attempt to raise the overall level of consideration to the level that powerful groups take for granted.

That, I think, is the PC that Waring sees value in.

Taub, on the other hand, is talking not about PC as it would be defined by its practitioners, but about the undefined negative label that gets thrown around by critics. And she’s right: The most common usage of “political correctness” in the media is to label some issue as beneath my concern, because the people being offended or victimized or insulted aren’t people I care about, and aren’t powerful enough to make me care.

Let me start by saying what should be obvious, something I hope will provoke no disagreement: Nothing that people say or write or draw should get them killed. Not by a government, a church, a political party, or offended individuals. No opinion or blasphemy or insult or truth or lie, no matter how it’s packaged or delivered, justifies violence.

In almost every case, the proper response to speech is speech, or perhaps a shocked or dignified silence. Truth is the best answer to lies, insight the proper response to fallacy. Sometimes an insult can be topped by a cleverer insult, and sometimes it’s wiser to walk away. If a comedian tells a cruel joke and the audience responds with stunned silence, justice has been served. No violence is necessary or called for or warranted. Say what you may, you don’t “have it coming”. As Hassen Chalghoumi, the Muslim imam of the Paris suburb Drancy said in response to the Charlie Hebdo killings:

We can argue over liberty, but when we’re in disagreement we respond to art with art, to wit with wit. We never respond to a drawing with blood. No! Never.

Even the classic exception — yelling “Fire!” in a crowded theater — just calls for someone to put a hand over your mouth and hustle you out the door, maybe to face a misdemeanor charge that underlines the seriousness of the situation. No beat-down is necessary. No lengthy imprisonment. No execution.

Nothing you say or write or draw should get you killed.

My next point isn’t quite as obvious, but also shouldn’t be controversial: Some legal speech should be socially unacceptable. After Mel Gibson went on a drunken rant about the “fucking Jews”, he wasn’t imprisoned or assassinated, but his popularity took a dive. When Duck Dynasty‘s Phil Robertson spewed a lot of demeaning nonsense about gays, blacks, and anyone who isn’t Christian, he was not arrested, but the show’s ratings dropped.

If I started sprinkling words like nigger and faggot through all my conversations, I would be breaking no laws, but people would avoid me. If I talked like that in a workplace, to my co-workers or our employer’s customers, I’d probably get fired. That’s an entirely appropriate response that has nothing to do with free speech.

Free speech has social consequences. If you want to be protected against the nonviolent social consequences of what you say, you’re talking about something else, not free speech.

Free speech also doesn’t require anyone to sponsor my speech or provide a convenient platform for me to say things they find offensive. (That actually isn’t hypothetical; I occasionally get invitations to speak in public, which I believe would dry up if I made a habit of saying racist or otherwise hateful things.) So when A&E briefly decided to separate itself from Robertson (and then reversed that decision), that wasn’t about free speech. Neither were the examples raised by David Brooks Thursday in his NYT column. If the University of Illinois doesn’t want to pay a Catholic priest to preach his doctrine in a for-credit class as an adjunct professor (and then reverses that decision), that might violate academic freedom (depending on what academic freedom means in the tradition of that school), but not freedom of speech. If universities do or don’t want to host Ayaan Hirsi Ali or Bill Maher, that’s a sponsored-speech issue, not a free-speech issue.

If people respond to what I say by calling it “hate speech” or by calling me a racist or sexist or some other name I don’t like, my rights have not been violated. (No matter what Sarah Palin thinks the First Amendment says.) Those words don’t have some magical power to “silence” people. Free speech doesn’t end when I’m done speaking; other people get to speak too — about me, if they want.

So I should be free to say or write or draw what I want without violence, but everybody else should be free to argue with me or insult me or shun me, if that seems appropriate to them. And if your response to me seems over-the-top to some third person, he or she should be free to criticize or insult or shun you too. That’s how freedom works.

So am I Charlie? After 9-11, Le Monde titled an editorial “Nous sommes tous Américains” — we are all Americans. For decades, the French had resented being in the shadow of American power, and had been reluctant allies at best. But in 9-11 Le Monde saw a violation of the civilized principles France and America share, and realized that what had happened to us could happen to them. So they put aside any petty urge to gloat over our misfortune and instead chose to identify with us: In the aftermath of 9-11, we were all Americans, even if we happened to be French.

There are a lot of ways in which we are all Charlie, or wish we had it in us to be Charlie. Charlie Hebdo is a satirical magazine that refused to back down when it was threatened or even attacked. (It’s still not backing down; the next issue will have a million-copy run.) All of us want to speak freely, and want to identify with people who stand up to intimidation and bullying, even if we don’t always stand up ourselves. Nobody wants to see the bullies win.

To that end, a lot of web sites have been re-posting the Charlie cartoons that offended Muslims (with translations at Vox), and are presumably the ones that 12 people died for. If anybody thinks that murder is an effective way to suppress cartoons, they should find out how wrong they are. Here’s one:

“Muhammad Overwhelmed by Fundamentalists” says the headline, and Vox has a red-faced Muhammad saying “It’s hard to be loved by idiots.” That sentiment would also fit well in Jesus’ mouth, IMHO, and would make the cartoon funny, if that’s what it really said. I could imagine such a cartoon in The Onion.

But something isn’t quite right about Vox‘s translation, because idiot is a perfectly fine French word, and Muhammad isn’t saying it. French has never been my subject, but after a little poking around online, I’m suspecting that cons is actually closer to cunts, which changes the impact considerably. (That’s also the translation favored by Saturn’s Repository.)

Then there’s the cartoon I won’t re-post, but The Hooded Utilitarian did: the one that turns the Boko Haram sex slaves into welfare queens. Is that supposed to be funny?

The American media has been portraying Charlie Hebdo almost as a French equivalent of irreverent American publications like The Onion or Mad, but it really isn’t. Something much darker has been going on. Charlie wasn’t just trying to be funny without worrying who it offended; it was trying to offend people for the sake of offending them, while maybe incidentally being funny. And although you can find examples here and there of attacks on Catholics or Jews, it put special effort into offending Muslims.

Which leads to the next question: If Charlie Hebdo was attacked for baiting Muslims, should those of us who find ourselves identifying with Charlie carry on its mission by doing our own Muslim baiting?

[I]t is self-evident that if a writer who specialized in overtly anti-black or anti-Semitic screeds had been murdered for their ideas, there would be no widespread calls to republish their trash in “solidarity” with their free speech rights.

Greenwald (who is of Jewish heritage but was not raised in any organized religion) illustrates that point by posting an ugly series of anti-Semitic cartoons and asking: “Is it time for me to be celebrated for my brave and noble defense of free speech rights?”

Punching down. Humor works best as a weapon of the weak against the powerful. But when the powerful make fun of the weak — like when popular high school jocks trip the new kid into a mud puddle and laugh — it soon stops being humorous and turns ugly.

Sometimes telling the weak from the powerful is tricky. When Rush Limbaugh plays “Barack the Magic Negro” on his show, is he a free citizen lampooning a powerful politician, or a rich and influential white celebrity telling American blacks that even the best of them don’t deserve his respect? I can imagine someone taking the first view, but the mere existence of the second restrains me from laughing.

In France, Muslims are not just a minority religion, they are an underclass. Many come from former French colonies like Algeria, and work low-status jobs for considerably less than the average French wage. Whatever other messages Charlie Hebdo‘s anti-Muslim cartoons might send, they also express the social power that educated white Frenchmen have over their darker-skinned menials. And that makes those drawings considerably less funny.

White men punching down is not a recipe for good satire, and needs to be called out. People getting upset does not prove that the satire was good. And, this is the hardest part, the murder of the satirists in question does not prove that their satire was good.

Satire, even bad satire or bigoted satire, is not something anybody should be killed for — or arrested or beaten up or vandalized for. I’m not making a both-sides-are-wrong point, because the wrong on one side is completely out of scale with the other. But that doesn’t mean I want to celebrate anti-Muslim bigotry.

So in some ways I want to be Charlie and in other ways I don’t. I hope that if anyone ever tries to intimidate me out of speaking my mind, I will be as courageous as the staff of Charlie Hebdo. I hope their successors remain free to print what they want, and that the people who appreciate their work remain free to buy it. But I can’t endorse what they published. All speech should be legal and free from violence, but some should be socially unacceptable.

I hated last summer’s Windsor decision. That is, I loved the result — the Defense of Marriage Act overturned — but I hated Justice Kennedy’s mushy legal logic. What did the decision mean? How would it apply to anything beyond the specific case in front of the Court? How would it apply to state bans on same-sex marriage?

Lower-court judges wondered too. As he was striking down Oklahoma’s ban in January, Judge Terence Kern placed a subtle barb into his decision:

Ordinarily, a lower-court judge just “applies” principles from a higher-court ruling, rather than having to “glean” them first.

Nevertheless, judges all over the country were managing to glean something similar out of Windsor. In one federal district after another — Indiana, Utah, Virginia, Wisconsin — state same-sex marriage bans were going down. The states were appealing those decisions to the Supreme Court, but the Court did not necessarily have to make a ruling, because so far the appellate court rulings were unanimously against the state bans. If one district found them constitutional and another unconstitutional, the Supremes would have to step in. But so far that hadn’t happened.

On Monday, the Court announced that it would take advantage of its right to remain silent: It was refusing to hear the appeals. That instantly established marriage equality in the appealing states, and made virtually automatic its extension to other states in the same appellate districts: Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming. (The near-automatic ruling in North Carolina happened Friday. Thursday, West Virginia officials dropped their case rather than waste time losing.)

When the dust settles fairly soon, gays and lesbians will be allowed to marry in 30 states — 35 if the 9th Circuit joins the appellate-court consensus. Can anything stop its extension to the whole country before long?

The politics of the Supreme Court. One of the intriguing facts about the Court’s non-decision is that hearing an appeal only requires the approval of four justices, not the five it would take for the appeal to succeed. The Court’s four most conservative members — Roberts, Scalia, Alito, and Thomas — all dissented in Windsor and presumably believe in the constitutionality of state same-sex marriage bans. If they had stuck together, they could have agreed to hear the appeals. That would have stopped the spread of marriage equality at least until the Court ruled, maybe as late as June.

The only reason not to take that course is the fear that they would lose, and that Justice Kennedy would join the Court’s liberal justices — Ginsburg, Sotomayor, Breyer, and Kagan — in establishing a constitutional right to same-sex marriage in all 50 states. Similarly, the four liberal justices could have accepted the appeal and gone for the win rather than for the sizable advance the non-decision represents.

All the justices — especially Kennedy — might want the battle for marriage to play out in a more gradual, more organic way, rather than ending it in a quick thrust with the Court’s fingerprints on the knife.

And both sides can keep their victory scenarios alive, though the conservative victory scenario is shakier: If they can’t convince Kennedy to join them, the conservative justices have to hope a Republican wins the White House in 2016 and has a chance to replace Kennedy or a liberal judge with a conservative.

The legal debate. Reading the post-Windsor lower-court decisions, one conclusion is inescapable: The anti-gay side has run out of ammunition. In case after case, they have had no better strategy than to trot out the same arguments all the previous courts rejected, and hope that this judge will be more sympathetic to their cause.

Way back in Lawrence, the Supreme Court rejected the notion that mere moral disapproval (without any substantive injury to those disapproving or to society in general) was an acceptable basis for making a law (against sodomy, in that case). So “I think two men kissing is yucky” is not a rational basis for banning same-sex marriage. Similarly, “The Bible says it’s wrong” doesn’t cut it, because the Bible has no legal standing.

Since those are the actual reasons people oppose marriage equality, the legal arguments against it have always been facades. More and more, they have looked like facades, and judges have routinely knocked them down: There is zero legitimate evidence that letting same-sex couples marry harms heterosexual couples, or the children being raised by either same-sex or opposite-sex couples, or anyone else.

Looking back at the Goodridge decision (that legalized same-sex marriage in Massachusetts in 2003), it’s striking how little has changed on the anti-gay side. The arguments that were unconvincing a decade ago are still the only ones they have.

The political debate.My prediction after Goodridge has been borne out:

Personally, I expect the same-sex marriage issue to follow the same course as interracial marriage. After a few years of Chicken-Little panic, the vast majority of Americans will recognize that the sky has not fallen, and that the new rights of homosexuals have come at the expense of no one.

Barring a miracle, the family as it has been known for more than five millennia will crumble, presaging the fall of Western civilization itself.

Same-sex marriage has been legal in my state (New Hampshire) for almost five years. And I live just across the border from Massachusetts, where it’s been legal for a decade. If the family or Western civilization is any closer to crumbling here than in heterosexual-marriage-only states like Texas or Alabama, the signs are escaping me.

Scare tactics like Dobson’s are an all-or-nothing gamble. If you can frighten people out of trying something, they’ll never find out that your visions of doom are baseless. But as soon as somebody does try it, then the sky either falls or it doesn’t.

The sky isn’t falling. The more states that implement marriage equality and the more same-sex couples that are visibly pursuing their chance at marital happiness, the more obvious it becomes that the sky is not falling. Little Bobby’s friend Susie has two Dads or two Moms, and it’s just not a problem. You’ll never be able to explain to Bobby why you want the government to break up Susie’s family.

That’s why the poll results are so age-determined. The main people against marriage equality these days are the grandparents, who don’t have to explain stuff to Bobby.

So here’s what I expect to happen as a result of this latest expansion of marriage equality: The opposition will harden in the states affected, but it will also shrink. More and more people will have a chance to observe first-hand the absurdity of the “pro-family” scare tactics.

Here’s what I don’t expect to happen: The Republican Party will not launch a crusade to get this reversed, or play up the Republican-president-appoints-an-anti-gay-judge scenario in 2016. Because nationally, that’s a losing issue. The public has turned.

The essence of the Confederate worldview is that the democratic process cannot legitimately change the established social order, and so all forms of legal and illegal resistance are justified when it tries.

On the national level, conservatives can’t win this battle either legally or democratically any more, and the number of states where they could win democratically is shrinking every year. More and more, the national Republican leadership wants to talk about anything else — Ebola-infected ISIS terrorists crossing our Mexican border, maybe.

Increasingly, there is less room in the GOP for ‘big-government’ social conservatives, i.e., social conservatives who believe in using the power of the state to tell people whom they can love or marry. Instead, there is growing agreement, in an ever younger and increasingly libertarian Republican party, that the role of the state in prohibiting relationships should be minimized.

And northern Republican governors like Scott Walker and Chris Christie are happy to leave the issue behind.

But that pragmatic approach to politics doesn’t sit well with the older Confederate types. Mike Huckabee is threatening to leave the party if it doesn’t fight this. Other voices are calling for civil disobedience, though it’s not clear what form that would take.

The most outrageous response came from Pat Buchanan, who recalled resistance to an earlier act of “judicial dictatorship”:

In 1954, the Supreme Court ordered the desegregation of all public schools. But when the court began to dictate the racial balance of public schools, and order the forced busing of children based on race across cities and county lines to bring it about, a rebellion arose.

Only when resistance became national and a violent reaction began did our black-robed radicals back down.

I also cited the reaction to school desegregation as an example of Confederate tactics in the modern era. And Buchanan apparently sees that relationship too (though he views it positively). He ends his article with a quote from Robert Lewis Dabny’s 1867 book A Defense of Virginia.

American conservatism is merely the shadow that follows Radicalism as it moves forward towards perdition. It remains behind it, but never retards it, and always advances near its leader. … Its impotency is not hard, indeed, to explain. It is worthless because it is the conservatism of expediency only, and not of sturdy principle. It intends to risk nothing serious, for the sake of the truth, and has no idea of being guilty of the folly of martyrdom.

Buchanan is arguing against conservatives who believe that the debate about same-sex marriage is over. Dabny was arguing — after the end of the Civil War — with those who thought that the debate about slavery was over. Dabny was a prophet of the insurgency that ultimately won Reconstruction for the South and established Jim Crow.

I fear to tread here, because I have no children myself and my position is complicated. I grew up in the white working class, where it was assumed that all families spanked. My parents stopped when I was four, not because they were against the practice in general, but because it didn’t seem to work very well on me. I have no memories of being spanked. (I’ve heard my father tell the story of the last time he spanked me. He seemed more traumatized by it than I was.)

Having watched most of my professional-class friends raise children without spanking, I think that’s what I’d recommend if anyone thought my opinion was worth seeking out. But I’m appalled at the level of classism I hear whenever this issue gets discussed. Lots of otherwise thoughtful people talk as if working-class parents routinely beat their kids up for amusement.

Here’s what I observed growing up: For the vast majority of the households I knew, spanking was part of a well-thought-out system of discipline. It was rare — used only when a series of lesser punishments had failed — and relied more on its symbolic value than the physical pain inflicted. It was not supposed to be done in anger. (That was the whole point behind, “Wait till your father comes home.”) My friends were not going to the emergency room or showing up at school with visible welts and bruises.

Child abuse seems to me to be something else entirely, and it happens in families across the class spectrum. Slapping your toddler’s hand when he reaches for the burner on the stove is a completely different thing than breaking his collarbone because you had a bad day. It’s not a difference of degree.

In every era, the upper classes rationalize why they are better and more deserving than the lower classes. Usually there is some core of truth behind their justifications. (In Victorian England, the upper classes could quote fine poetry, sometimes in Latin or Greek, which is an admirable skill.) I-never-raise-a-hand-to-my-child has taken on that role in our era. There’s a core of truth; in general, professional-class discipline probably is better for the child than working-class discipline. But this class virtue is being exploited for the sinister purpose of justifying class differences in general: Those working-class barbarians. No wonder they live in squalor.

I strongly advise you not to read this post. Your browser has a Back button. Use it.

I don’t know what it is about Todd Akin.

The whole point of the Weekly Sift is to filter the junk and hype out of the news so that you only read stuff that is worth your attention. But success in that venture depends on my ability to leave something alone once I’ve determined that it’s not worth either your time or mine.

Todd Akin is not worth your time or mine. So you shouldn’t read this post and I certainly shouldn’t be writing it. And yet, I can’t seem to ignore him. I suppose it’s that infuriating combination of ignorance, self-righteousness, and self-assurance. So many intelligent, thoughtful people could be interviewed on TV, but aren’t. And yet, there’s Todd Akin, displayed in my living room! And why am I writing about him? I’m just making it worse.

But I can’t stop myself, so let’s get this over with: In interviews promoting his new book — which I refuse to link to; I still have that much control — he says he knows what he did wrong in his “legitimate rape” interview: It was just a bad choice of words. He should have said “legitimate case of rape” instead, because then the liberal media couldn’t have slandered him by making it sound like he thought a rape could be legitimate.

CHARLESJACO: So if an abortion can be considered in the case of, say, a tubal pregnancy or something like that, what about in the case of rape? Should it be legal or not?

REP. TODDAKIN: Well, you know, people always want to try and make that as one of those things: “Well, how do you—how do you slice this particularly tough sort of ethical question?” It seems to me, first of all, from what I understand from doctors, that’s really rare. If it’s a legitimate [case of] rape, the female body has ways to try to shut that whole thing down. But let’s assume that maybe that didn’t work or something. You know, I think there should be some punishment, but the punishment ought to be on the rapist and not attacking the child.

Well, the insensitivity is unchanged: Raped women aren’t real people who deserve our compassion, they’re just a “tough sort of ethical question” that tricky interviewers use to try to trip Akin up — like “Can God make a rock so big He can’t lift it?” or something. And after this tough question gets sorted out by the higher mind, it really just comes down to who to punish — the rapist or the fetus. The woman is a bystander.

The junk science about female physiology is still there; two years later, and he still hasn’t educated himself. And he’s still implying that only violent rape really counts. (What about roofies? Even in Akin’s alternate universe, would an unconscious woman’s body “shut that whole thing down”?)

Most importantly, he’s still saying that women who claim they got pregnant from a rape are probably lying, because “that’s really rare” in “a legitimate [case of] rape”.

So no, I don’t think he fixed anything.

Here’s what’s reprehensible about Todd Akin, and it’s got nothing to do with his choice of words: Even given two years to think about it, he still believes in a legal system in which rape is a viable male reproductive strategy. (They’ll put you in jail if they catch you — and if the woman can prove she didn’t consent — but the law will force your victims to bear your children, so your genes will live on.) He believes in that system so strongly that he’s willing to seek out junk science to justify it.

I’m going to stop writing now. To everyone who made it this far: I’m sorry. I really am. Try to do something more worthwhile with the rest of your day.

Men look at Elliot Rodger and say, “I would never do something like that.” Women look at his victims and say, “That could totally happen to me.”

Last week the Isla Vista murders — and Elliot Rodger’s bizarre rants justifying his revenge on the female gender because women wouldn’t have sex with him — were recent enough that I hadn’t processed them. I described my snap reaction as feeling “slimed”. Letting Rodger’s thoughts into my head just made me feel dirty, polluted, unclean. And I wrote, “I can’t imagine how women feel about it.”

This week women told the world how they feel about it. (They were already starting to tell the world last Monday, but I hadn’t discovered it yet.) I have read only a tiny fraction of what has been tweeted with the #YesAllWomen hashtag, but it has been eye-opening.

The struggle for meaning. Every striking news event starts a debate about what it means, or if it even means anything. For a lot of men, Isla Vista didn’t mean much: Crazy people do crazy things. Shit happens.

Bizarre exception, or part of a pattern? To a lot of women, though, Isla Vista looked very different. Rather than a bizarre random event, it seemed like the extreme edge of the male aggression they experience constantly: They get grabbed or groped; men yell obscenities at them or make unwanted “flattering” comments about their bodies; they are harassed online; men demand their attention and refuse to go away; when women try to walk away, men grab their wrists or stand in the doorway or follow them as stalkers; men get angry and abusive when their uninvited advances are rejected; and on and on and on.

And while the exact statistics on rape are hotly debated — the difference depends in large part on how forcefully a woman has to say “no” before you count it — I have a lot of confidence in this qualitative statement: Just about every woman knows somebody who has been raped. (If you don’t believe me, ask some.) Whatever the definition is and whatever percentage that leads to, rape is not a monsters-in-the-closet phobia; it’s the well-founded fear that what happened to her (and maybe also to her and her and her) could happen to me.

So while men look at Elliot Rodger and say, “I would never do something like that”, women look at his victims and say, “That could totally happen to me.” Men divide the world into murderers and non-murderers, observing that the murderer pool is very small. Women look at murder as the extreme edge of a continuum of aggression, disrespect, and threat that affects them every day.

#YesAllWomen. And that is what I see as the point of #YesAllWomen: encouraging women to express and men to feel the oppressive weight of that continuum. #YesAllWomen is at its best when women simply tell their stories, one after another. Read enough stories and the bigger reality starts to break through: The meaning of Isla Vista isn’t that shit happens, it’s that the same kinds of shit keep happening day after day all over the country. And when there’s an widespread pattern like that, sooner or later it’s going to break out into something really horrific.*

The brilliance of #YesAllWomen is in its framing: It sidesteps the objection “Not all men are like that.” True or not, that objection misses the point. Whether or not feminist terms like misogyny or rape culture unfairly tar some good men is a minor issue compared to the environment of danger all women have to live in. Let’s not drop the larger issue to discuss the smaller one.**

And let’s not fall into the trap of interpreting every problem in the forest as the fault of individual trees. Laurie Penny explains:

of course not all men hate women. But culture hates women, so men who grow up in a sexist culture have a tendency to do and say sexist things, often without meaning to. … You can be the gentlest, sweetest man in the world yet still benefit from sexism. That’s how oppression works. Thousands of otherwise decent people are persuaded to go along with an unfair system because it’s less hassle that way. … I do not believe the majority of men are too stupid to understand this distinction

[T]he overall problem is one of a culture where instead of seeing women as, you know, people, protagonists of their own stories just like we are of ours, men are taught that women are things to “earn,” to “win.” That if we try hard enough and persist long enough, we’ll get the girl in the end. Like life is a video game and women, like money and status, are just part of the reward we get for doing well.

The game metaphor explains a lot about what was wrong with Rodger’s point of view, and how it relates to a problem in the larger culture. Elliot Rodger’s complaint wasn’t that he couldn’t find his soulmate or that his genes might fail in the Darwinian struggle for immortality. It wasn’t even about pleasure, really, because you don’t need a partner for that. The essence of Rodger’s complaint was that he couldn’t level up — no matter how long he played or how hard he tried — in the multi-player game of sex.

To grasp the full dysfunction of that game, you need to understand who the players are: men. Rodger wasn’t playing with or even against women when he went out looking for sex. He was playing against other men to gain status. Women are just NPCs — non-player characters. Figuring out what to say or do to get their attention or their phone numbers or to get them into bed is like solving the gatekeeper’s riddle or finding the catch that opens the door to the secret passage.

Rodger’s virginity wasn’t just a lack of experience, comparable to someone who has never seen the ocean or been to Paris or tasted champagne. It was his state of being. He was a newby, a beginner, a loser. And it wasn’t fair. He had put so much of his time and effort and passion into the game; he deserved to get something out.

Chu explains the error:

other people’s bodies and other people’s love are not something that can be taken nor even something that can be earned—they can be given freely, by choice, or not.

We need to get that. Really, really grok that, if our half of the species ever going to be worth a damn. Not getting that means that there will always be some percent of us who will be rapists, and abusers, and killers.

What will we pass on? Phrasing the game metaphor in computer terms makes it sound like a new problem of the internet generation, but it’s not.**** Computer games are just a good way of describing an attitude that has been around since Achilles and Agamemnon argued over a slave girl: that women are just tokens in a competition among men. In junior high in the 70s, my friends and I talked about “getting to second base”, and today commercials sell Viagra and Grecian Formula to older men by telling us we can “get back in the game”. We all know what game they’re talking about.

As long as that attitude gets passed down from one generation of men to the next, there’s going to be an aggression-against-women problem. Because that’s how men play: You sneak some vaseline onto the ball, hide an ace up your sleeve, take that performance-enhancing drug, or push away a defender when the refs aren’t looking. If you can get away with it, it’s part of the game. So if it raises your score to grab some body part otherwise denied you, or to intimidate women into submission, take advantage of their unconsciousness, drug them, or even kidnap and imprison them, someone’s going to do it.

No one ever asks a boy whether he wants to play this game. At some point in your adolescence, you just find yourself in the middle of it, being told that you are losing and advised on how to win. There are competing visions that (for most men, I believe) eventually win out as they mature: the search for companionship, or looking for an ally to help you face life’s challenges. In those visions, women can be “protagonists of their own stories” rather than NPCs. But no one ever tells you there is a choice of visions and lays out the consequences.

If we did discuss these competing visions openly with boys, I don’t think the game metaphor would stand up to conscious scrutiny. Few men would openly defend the idea that women exist to be tokens of our competition, and even most teens already have enough empathy and experience for it to ring false. But the game attitude survives because we don’t bring it out into the light and discuss it.

Changing that dynamic would be a fine response to #YesAllWomen.

* I shake my head at the people who want to make an either/or out of whether the blame for Isla Vista belongs to a misogynistic culture or to Rodger’s personal insanity. Growing up, I had the chance to observe a paranoid relative. She went crazy during the McCarthy red scare, so the Communists were after her. If she’d broken with reality a few years earlier it might have been the Nazis; a few years later, the Mafia. Maybe people go crazy because their brains malfunction, but how they go crazy is shaped by their culture.

** One of the prerogatives of any form of privilege is that your concerns move to the top of the agenda, even if they are comparatively minor. Privileged classes of all sorts take this prerogative for granted and have a hard time seeing it as an injustice. So it is here: Men who feel smeared by a term like rape culture tend to think the conversation should immediately shift to their hurt feelings. It shouldn’t. To the extent that this objection is justified, it can wait. Let’s talk about it later. (Privileged classes aren’t used to hearing that response, but under-privileged classes hear it all the time.)

An important reason it should wait, in addition to its comparative insignificance, is that when a man fully grasps the continuum of aggression, it’s hard to claim that he’s never played any role in perpetuating it. (I know I can’t make that claim.) But by changing the subject to their own victimization, men avoid that realization.

*** Most advice about how to avoid rape — how to dress, places to avoid, not leaving your drink unattended — is really about making sure the rapist picks someone else. It’s like, “You don’t have to swim faster than the shark, you just have to swim faster than your sister.” It’s got zero impact on the overall rape problem.

**** And the attitude behind it is not even unique to men. In the pre-war chapters of Gone With the Wind, Scarlett is playing her own version of the game. While she wants to wind up with Ashley eventually, in the meantime she wants every eligible man in Georgia to be her suitor, and she “wins” whenever a bride realizes that she has married one of Scarlett’s cast-offs.

But there’s one important difference between the male and female versions of the game: Men who tire of Scarlett’s game can get on their horses and ride away, and in the end, it’s up to Rhett to decide whether or not he gives a damn. Women would like to have those options in the male version of the game.

There’s one important thing you need to understand about this controversy: It’s symbolic. I went looking for cases where businesses were forced to deal with same-sex weddings and I found exactly five in the entire country.

In New Mexico, a photography business was successfully sued by a lesbian couple whose commitment ceremony (same-sex marriage being illegal in New Mexico) it refused to photograph. (I covered the ruling in a weekly summary last August.)

A Vermont inn was sued for refusing to host a wedding reception for a same-sex couple, which the owners claim was a misunderstanding. The case was settled out of court, so we don’t know what a judge would have said.

Some writers make it sound like these are representative examples out of many, but they may well be the only instances to date.

Last June, the Pew Research Center estimated that over 70,000 same-sex marriages had been performed in the United States, plus an uncounted number of civil unions and legally unrecognized commitment ceremonies like the one in New Mexico. In all but a handful of them, people seem to have worked out whatever differences they had. Wedding planners, photographers, bakers, dress-makers, tuxedo-rental places, florists, celebrants, meeting halls, church sanctuaries … either they approved or they swallowed their disapproval or the couples took the hint and looked for service-with-a-smile elsewhere. Or maybe they found compromises they could all live with. (“I’ll sell you the cake, but you’ll have to put the two brides on top yourself.”)

In short, S.B. 1062 does not address a practical issue. Across the country, people are behaving like adults and working things out without involving the government. Governor Brewer recognized as much in her veto statement:

Senate Bill 1062 does not address a specific or present concern related to religious liberty in Arizona. I have not heard one example in Arizona where a business owner’s religious liberty has been violated.

The uproar is also symbolic on the other side. Critics of S.B. 1062 warned about “gay Jim Crow” laws, but just as there is no flood of suits against fundamentalist Christian florists, neither are large numbers of businesses waiting for the state’s permission to display “No Gays Allowed” signs. As The Christian Post pointed out, Arizona (like many other states) has no state law protecting gays from discrimination. (New Mexico does, which is why the lesbian couple won their suit against the photographers.) So outside a few cities that have local anti-discrimination ordinances, Arizona businesses are already free to put out “No Gays Allowed” signs without S.B. 1062. If any have done so, nobody is making a big deal out of it.

What this all resembles more than anything is the argument over the constitutional amendment to ban flag-burning. Actual flag-burnings are so rare that most of the amendment’s backers couldn’t cite a particular case, but they felt very strongly about it all the same. The few cases that actually exist are merely chips in a poker game; they are symbols of some deeper philosophical conflict, but mean little in themselves.

That’s not to say that philosophical conflicts are unimportant, but they are also not urgent. Because major injustices against one side or the other are not happening every day — and depending on your definition of “major injustice” may not be happening at all — we can afford to take some time to think this through calmly: What principles of religious liberty should we be trying to protect, and are any of those principles implicated in the cases that have been decided?

In my view, one basic principle is: No one should be forced to participate in a religious ritual. That’s why I don’t want teachers leading prayers in public school classrooms, especially when the children are too young to make a meaningful choice about opting out. For the same reason, it would be wrong to sue a priest who refused to perform a Catholic marriage ritual for a marriage his church did not sanction.

Some supporters of laws like S.B. 1062 (and the pending H.B. 2481) are citing this principle, but I think we need to be careful not to stretch the definition of a religious ritual. For example, civil marriage is not a religious ritual, so neither an officiating judge nor the clerk who issues a license is participating in religion. (If they were, that would seriously violate the separation of church and state.) Requiring that they do their jobs is not a violation of their religious liberty. The fact that you don’t make the laws and may disagree with them is a normal hardship of working for the government, not a First Amendment issue.

Similarly, a wedding reception is not a religious ritual; it’s a party that happens to take place after a religious ritual. Baking the cake or DJing the music or manning the bar are not sacramental roles, and do not deserve that kind of protection.

A second principle is: No one should be compelled to make a statement against his or her conscience. This was used as a defense in the Colorado bakery case. Administrative Law Judge Robert Spencer rejected it like this:

There is no doubt that decorating a wedding cake involves considerable skill and artistry. However, the finished product does not necessarily qualify as “speech,” as would saluting a flag, marching in a parade, or displaying a motto. The undisputed evidence is that [the baker] categorically refused to prepare a cake for Complainants’ same-sex wedding before there was any discussion about what that cake would look like. [The baker] was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage.

So if a wedding-reception singer refused to sing some special gay-rights anthem, I would support him under this principle. But if he refused to perform at all, or refused to perform more-or-less the same collection of songs he does for everyone else who hires him, then I wouldn’t. Leading the friends and families of a same-sex couple in “The Hokey Pokey” is not a religious or political statement that should challenge anyone’s conscience.

Weighing against these exceptions is a public-accommodation principle that got established during the Civil Rights movement: If a business serves the public, then it should serve the whole public. The point of Jim Crow laws wasn’t to protect the consciences of white business owners, it was to exclude black people from the general public. If excluding gay and lesbian couples from the general public is the purpose behind refusing to serve them, that shouldn’t be allowed.

People try to fudge this principle by creating me-or-him situations. I grew up reading Ann Landers’ advice column in the newspaper. Ann used to regularly get questions like: “My good friend says she can’t come to my wedding if my other good friend is going to be there. What should I do?” As best I remember, her answer was always something like: “Invite everyone who you want to see there. If your friend doesn’t want to come, that’s her decision.” The same idea works here: Everyone should be invited to the marketplace. If you feel that the presence of gays and lesbians in the marketplace means you can’t be there, that’s your decision. No one has forced you out. (This is my answer to the U.S. Council of Catholic Bishops, who claim “Catholic Charities of Boston was forced to shut down its adoption services.”)

The other frequently raised issue has to do with venues: Will the law force my church sanctuary to be available for same-sex marriages? The idea that a sanctified site will be used for some unholy purpose strikes many people very deeply.

The case that is always cited — often not very precisely — involves a Methodist group, the Ocean Grove Camp Meeting Association in New Jersey. The OGCMA owned a boardwalk pavilion, which the judge described as “open-air wood-framed seating area along the boardwalk facing the Atlantic Ocean.” The Methodist group used the facility “primarily for religious programming”, but had received a tax exemption for the property the pavilion was on. One condition of the exemption was that the facility be open to the public. The OGCMA had a web page advertising “An Ocean Grove Wedding”, which cost $250 in rent. The OGCMA did not conduct or plan the weddings, and the page said nothing about Methodist doctrines concerning marriage.

Until the OGCMA turned down a lesbian couple that wanted to celebrate a civil union in 2007, no one could recall a wedding being refused for any reason other than scheduling. After the couple sued, OGCMA re-organized its use of the pavilion. It stopped advertising it to the public and sought a different kind of tax exemption available to it as a religious organization. The judge found:

[The OGCMA] can rearrange Pavilion operations, as it has done, to avoid this clash with the [New Jersey Law Against Discrimination]. It was not, however, free to promise equal access, to rent wedding space to heterosexual couples irrespective of their tradition, and then except these petitioners.

Recognizing that the couple mainly sought “the finding that they were wronged” and that the OGCMA had not “acted with ill motive”, the judge assessed no damages.

In other words, this example is not particularly scary when you know the details. The principle here is pretty simple: If you worry about the sanctity of your holy space, don’t rent it out to the public – whichis good advice in general, irrespective of same-sex marriage. If you do rent it out, then we’re back to the public-accommodation principle.

In conclusion, I’m not seeing anything particularly alarming in the five cases (six, if you add the boardwalk pavilion case) that are motivating people to support S.B. 1062 or similar laws. Reasonable principles are prevailing, and I do not see a slippery slope.

So if you’re worried about your minister being forced to bless a same-sex wedding in your sanctuary or go to jail, don’t be. It’s not happening and nobody is advocating for it to happen. Nothing in the cases that have been decided leads in that direction.

While the Supreme Court has been relatively quiet lately, a lot has been going on in lower courts. This week I’ll tackle the recent net neutrality and same-sex marriage cases. In future articles I plan to address cases related to the NSA, voting rights, and drug-testing welfare recipients.

Net neutrality. The headlines about this decision said things like “Verizon Wins, Net Neutrality Loses“. But the overall impact of the D. C. Court of Appeals ruling is a little more ambiguous and complicated. Reading it was like watching the tape of a football game where my team gets way ahead, but I’ve already heard that they lost. On its way to ruling in Verizon’s favor, the court trashes one Verizon argument after another. “We lose this?” I kept asking myself.

Net neutrality is one of those important-but-somewhat-technical issues that it’s hard to get the public excited about. The issue will go months at a time without making headlines, so when it comes up again even people who have read about it before are likely to say, “Wait, I know this. What is it again?” Wikipedia defines it pretty well:

Net neutrality (also network neutrality or Internet neutrality) is the principle that Internet service providers and governments should treat all data on the Internet equally, not discriminating or charging differentially by user, content, site, platform, application, type of attached equipment, and modes of communication.

The practical problem is that you don’t have a lot of choices if you want fast broadband internet access in your home. The local cable monopoly may be the only option if you aren’t near a major city. If you are, you might have a choice between Comcast and Verizon FIOS — a Coke/Pepsi choice where competition is tightly confined to battlefields that don’t rock the corporate boat too much.

In short, broadband providers have a lot of market power. And the technology has shaken out in such a way that they have the power not just to impose a bad deal on you, but also on “edge providers” of services like Netflix or Google. Comcast has its own video-on-demand service, for example, so what if it decided to block its users from accessing Netflix? Or maybe Netflix connections could be inexplicably glitchy, unless Netflix paid Comcast a big fee. (Nice service you got there. It’d be a shame if something happened to it.)

Verizon could decide to compete with Comcast by charging smaller fee (or no fee at all) so that its users got Netflix cheaper. But why not just charge the same fee, give your own on-demand service the same advantage, and make money hand-over-fist? If there were five or six broadband providers, one of the smaller ones would probably break ranks. But with two or three, probably not. (BTW: That’s the same logic why none of the larger wireless companies should be allowed to take over T-Mobile.)

Until Tuesday, FCC rules made that illegal. Those are the rules that got thrown out by the D. C. Appeals Court. But along the way, the Court rejected almost all the arguments Verizon made for why it should be allowed to do whatever it wants with its network and charge whatever the market will bear.

The relevant law is Telecommunications Act of 1996, which gave the FCC the mission to promote the spread of broadband internet access. The main argument is over how to do that: Verizon thinks that making things as profitable as possible for broadband providers (like itself) encourages the providers to build out the broadband infrastructure. Net neutrality advocates argue that letting a few big corporations essentially “own the internet” discourages the real creativity in the system, which comes from edge providers trying to create the next gotta-have-it service like Netflix or YouTube. A Verizon-owned internet will be less interesting than a net-neutrality internet, and hence will inspire less consumer demand.

In short, it’s yet another version of the eternal supply-side vs. demand-side argument.

Anyway, the TCA classifies internet companies into two bins: telecommunications carriers and information-services providers. Telecommunications carriers are regulated like the wired phone companies: They have to offer their services to everyone on a more-or-less equal basis. Information-services companies have more leeway.

The gist of the court ruling is that the FCC has classified cable companies as information-services providers, but that its net-neutrality rules regulate them like telecommunications carriers. So the FCC’s net-neutrality rules can’t stand. But — and this is the observation that snatches victory from the jaws of defeat — it’s totally within the FCC’s current powers and mandate to just reclassify the cable companies.

So net neutrality is dead. But if the FCC wants to revive it, all they have to do is issue new rules. Judge Laurence Silberman dissented from the majority opinion that the FCC has this power, but since Verizon technically “won”, they can’t appeal the ruling to the Supreme Court unless and until the FCC tries to use the power that the Court says it has.

In short, this is all a long way from over.

Same-sex marriage. A month ago, if I had to guess which two states would be the last ones to legalize same-sex marriage, I might have picked Utah and Oklahoma. Since then, though, federal judges have struck down the amendments to both state constitutions that restrict marriage to opposite-sex couples. Both judges build on the Supreme Court’s Windsor decision that struck down parts of the Defense of Marriage Act last summer, but they do it in somewhat different ways.

You may remember that while I liked the outcome of Windsor, I was no fan of Justice Kennedy’s majority opinion, which I labeled “mush” and lumped together with Chief Justice Roberts’ voting-rights-act decision in a subtle, soft-spoken article I called “This Court Sucks“.

Does the right to marry (which the Court has often affirmed as a fundamental right protected by the Constitution) apply to same-sex couples?

Are laws targeting gays and lesbians (like laws targeting blacks or women) inherently suspicious as vehicles for irrational prejudice, and so subject to some form of heightened scrutiny from the courts?

Whatever standard of scrutiny you choose, do the laws serve legitimate purposes that outweigh the limitations they put on the couples’ rights?

Kennedy dodged all that. He waxed eloquent for a while on the plight of same-sex couples and the unreasonable prejudices against them, and then announced that DOMA was struck down.

That’s exactly the result I want, Justice Kennedy, but how did you get there? The purposes Congress imagined DOMA serving — whatever they were; you don’t list them or examine them — don’t “overcome”, but are they failing to overcome a high standard or a low standard?

The victims of Kennedy’s judicial malpractice are lower court judges like Terence Kern and Robert Shelby, who have been left to rule on similar-but-not-identical cases without any clear guidance. In his Oklahoma ruling, Kern avoids technical legal terms like sucks and mush, but makes more-or-less the same point I did:

The Windsor Court did not apply the familiar equal protection framework, which inquires as to the applicable level of scrutiny and then analyzes the law’s justifications. … Thus, Windsor does not answer whether a state may prohibit same-sex marriage in the first instance. Nor does Windsor declare homosexuals a suspect class or discuss whether DOMA impacted a fundamental right, which would have provided this Court with a clear test .

So Kern does his best to puzzle out the WWJKD question:

This Court has gleaned and will apply two principles from Windsor.

Ordinarily, a lower-court judge just “applies” principles from a higher-court ruling, rather than having to “glean” them first.

Lacking clear guidance, Kern avoids declaring either a fundamental right to same-sex marriage or that gays and lesbians are a protected class. That means that Oklahoma’s same-sex marriage ban only needs to have “rational relation to some legitimate end”.

Shelby took a somewhat different path to the same destination in the Utah case. He made an insightful observation about what exactly has changed in recent years: not the Constitution, but our understanding of what it means to be gay or lesbian.

The State accepts without contest the Plaintiffs’ testimony that they cannot develop the type of intimate bond necessary to sustain a marriage with a person of the opposite sex. … Forty years ago, these assertions would not have been accepted by a court without dispute. In 1973, the American Psychiatric Association still defined homosexuality as a mental disorder in the Diagnostic and Statistical Manual of Mental Disorders (DSM-II), and leading experts believed that homosexuality was simply a lifestyle choice. … The State presents no argument or evidence to suggest that the Plaintiffs could change their identity if they desired to do so. Given these undisputed facts, it is clear that if the Plaintiffs are not allowed to marry a partner of the same sex, the Plaintiffs will be forced to remain unmarried. The effect of Amendment 3 is therefore that it denies gay and lesbian citizens of Utah the ability to exercise one of their constitutionally protected rights.

So Shelby is in a position to demand a higher standard of the state, that their ban on same-sex marriage is “narrowly tailored to serve a compelling state interest.” But ultimately, both Kern and Shelby end up arguing that the ban does not satisfy even the lowest standard, the rational-basis test.

In each case, the state trotted out the same justifications: that the state has an interest in promoting “responsible procreation” among “naturally procreative” couples, and that opposite-sex couples provide the ideal setting for raising childrent.

Both judges make basically the same counter-argument, but Shelby says it best:

[T]he State poses the wrong question. The court’s focus is not on whether extending marriage benefits to heterosexual couples serves a legitimate governmental interest. No one disputes that marriage benefits serve not just legitimate, but compelling governmental interests, which is why the Constitution provides such protection to an individual’s fundamental right to marry. Instead, courts are required to determine whether there is a rational connection between the challenged statute and a legitimate state interest. … The State of Utah has provided no evidence that opposite-sex marriage will be affected in any way by same-sex marriage. In the absence of such evidence, the State’s unsupported fears and speculations are insufficient to justify the State’s refusal to dignify the family relationships of its gay and lesbian citizens. …

Applying the law as it is required to do, the court holds that Utah’s prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process under the law. The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.

Both cases are being appealed and will undoubtedly end up before the Supreme Court. But what’s clear from the rulings is that the opponents of same-sex marriage will have to come up with a new set of arguments if they hope to prevail: It’s not enough to argue that opposite-sex marriage is good; they’ll need to argue that same-sex marriage is bad, which they have not done and may not be able to do, particularly when the person they need to convince is the Supreme Court’s swing vote, Justice Kennedy.

The abuse of the filibuster is a hard issue to get people excited about. It’s one of those technical political things that takes too long to explain and is hard to connect to problems voters care about.

This week, making those connections was a little easier. If you care about a woman’s right to decide whether she gets pregnant or has a baby, the connection to the filibuster was all too clear. Here are three of this week’s big stories:

Senator John Cornyn threatened to filibuster anyone President Obama nominates to the D. C. federal appeals court. He’s not making objections to the specific judges Obama has picked, he’s arguing that Obama shouldn’t be allowed to make any picks at all. The court’s current 4-4 conservative/liberal balance should be locked in, no matter how many elections Democrats win.

That same court issued a temporary injunction to suspend ObamaCare’s contraception mandate for certain firms, in anticipation of a permanent ruling that employers’ religious freedom gives them power over employees’ health decisions. The judge who wrote the majority opinion is a radical conservative that Democrats tried to block when President Bush nominated her, but they had to back down when Republicans threatened the “nuclear option” to eliminate the filibuster permanently.

While it has the smallest geographic jurisdiction of any of the United States courts of appeals, the D.C. Circuit, with eleven active judgeships, is arguably the most important inferior appellate court. The court is given the responsibility of directly reviewing the decisions and rulemaking of many federal independent agencies of the United States government based in the national capital, often without prior hearing by a district court. Aside from the agencies whose statutes explicitly direct review by the D.C. Circuit, the court typically hears cases from other agencies under the more general jurisdiction granted to the Courts of Appeals under the Administrative Procedure Act. Given the broad areas over which federal agencies have power, this often gives the judges of the D.C. Circuit a central role in affecting national U.S. policy and law.

A judgeship on the D.C. Circuit is often thought of as a stepping-stone for appointment to the Supreme Court.

The court has 11 active judgeSHIPs, but only 8 active judges. (It had only 7 — and a 4-3 conservative majority — until Obama finally got his first pick approved in May. It also has six semi-retired senior judges. If you count them, the court has a 9-5 conservative majority.) That’s because there are three vacancies. The Constitution (Article II, Section 2) specifies how those vacancies should be filled:

The President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for

The filibuster is a historical accident. The Founders didn’t envision it, and although an 1806 rule change made filibusters possible, the first one didn’t happen until 1837. They were rare until the 1970s, and truly skyrocketed when the Republicans became the Senate minority after the 2006 election.

Filibusters of presidential nominations were rare until the Clinton administration, and then Democrats retaliated during the Bush years. But even then, the justification for a filibuster was always some alleged problem with the individual nominee. (Bush nominee Janice Rogers Brown, for example, was filibustered for a history of inflammatory decisions, having once written of Social Security: “Today’s senior citizens blithely cannibalize their grandchildren because they have the right to get as much ‘free’ stuff as the political system will permit them to extract.”)

What’s new in the Obama years is the use of the filibuster to nullify a federal office by refusing to approve anyone to head it, regardless of character or qualifications. Until Senate Democrats threatened to invoke the so-called nuclear option in July, Republicans were on track to invalidate the entire National Labor Relations Board, essentially nullifying all laws protecting workers’ rights to organize unions and bargain collectively in good faith.

Cornyn proposes an extension of this unprecedented tactic: using the filibuster to nullify the three vacancies on the D. C. court, ostensibly because the court’s case load doesn’t require 11 judges. (He wasn’t bothered by an even lower case load when Bush appointed Rogers.)

If over-staffing of the D.C. court is indeed a problem (and not just a pretext to stave off a liberal majority), the Constitution provides a way to solve it in Article I, Section 8:

The Congress shall have Power … To constitute Tribunals inferior to the supreme Court

In other words, Congress could pass a law shrinking the D. C. court, if that were really a problem. But legislation requires a majority vote in both houses and the signature of the President, which Cornyn can’t get because his party can’t win national elections.

This is what the filibuster has become: not just a way to block new laws or objectionable appointments, but a way for a minority to repeal legislation already passed or to achieve its goals without passing laws at all.

Who needs to win elections?

The contraception mandate. Thursday, the previously mentioned Janice Rogers Brown (of Social-Security-is-cannibalism fame) was the deciding vote in a 2-1 decision by the D. C. appeals court to grant an injunction blocking enforcement of ObamaCare’s contraception mandate on a business owned by two Catholic brothers. The ruling isn’t a final decision in the case, but it reads like one, because one key consideration in granting such an injunction is a belief that the injunction-seeking side is likely to prevail.

Fortunately, Rogers stopped short of declaring that corporations are protected by the First Amendment’s free-exercise-of-religion clause, which would have produced true chaos. But the 400-employee company is owned by two brothers who claim to operate according to Catholic principles (i.e., having pro-life bumper stickers on their trucks), so the brothers’ religious freedom is violated by the requirement that they provide contraception coverage to their female employees.

It has been well understood since the founding of our nation that legislative restrictions may trump religious exercise. Braunfeld v. Brown, 366 U.S. 599, 603 (1961). Were it otherwise, “professed doctrines of religious belief [would be] superior to the law of the land, and in effect permit every citizen to become a law unto himself.”

A Christian Scientist, whose religion has historically opposed conventional medical treatment, might claim that his corporation is entitled to a religious exemption from covering all medical care except healers who treat medical ailments with prayer.

Edwards sees the conflict between the owners’ religious beliefs and the mandate, but does not find that it meets the legal standard of a “substantial burden”, using another analogy I’ve used here.

The Supreme Court has never applied the Free Exercise Clause to find a substantial burden on a plaintiff’s religious exercise where the plaintiff is not himself required to take or forgo action that violates his religious beliefs, but is merely required to take action that might enable other people to do things that are at odds with the plaintiff’s religious beliefs.

… The Gilardis do not contend that their religious exercise is violated when Freshway pays wages that employees might use to purchase contraception, and the Mandate does not require the Gilardis to facilitate the use of contraception any more directly than they already do by authorizing Freshway to pay wages.

Edwards quotes a 1982 Supreme Court decision:

Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.

If not for the filibuster, that might be the majority opinion.

Texas abortion law. One of the other Bush judicial appointees who made it through the Senate under threat of the nuclear option was Priscilla Owen, whose appointment the Houston Chronicle opposed with these words:

The problem is not that Owen is “too conservative,” as some of her critics complain, but that she too often contorts rulings to conform to her particular conservative outlook. It’s saying something that Owen is a regular dissenter on a Texas Supreme Court made up mostly of other conservative Republicans.

No less a conservative than Alberto Gonzales once characterized Owen’s opinion in a Texas abortion case as “an unconscionable act of judicial activism”. In other words, even among conservative judges, she stood out as particularly radical.

The stipulation in the recent Texas abortion law (the one Wendy Davis delayed for a session with her famous state-legislature filibuster) that doctors who perform abortions have admitting privileges in local hospitals is one of a number of regulations designed to close clinics, and is largely devoid of any legitimate purpose. The lower-court judge found that the law was “without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion.” Similar laws in Wisconsin and other states have been blocked by federal judges.

But thanks to Judge Owen, this one is allowed to take effect. Abortion clinics are already closing, and it is estimated the 1/3 of all abortion clinics in Texas — already not that common — will be unable to meet the requirement.

End the filibuster. Right now, conservatives are benefitting from the fact that Senate Republicans have been more willing to play hardball than Democrats. Democrats under Bush attempted to block only the most outrageous nominees, and for the most part they failed. Those judges are on the bench now, fighting the war on women.

That’s just one front of the struggle, the one whose dots were most easily connected this week. Ultra-conservative judges have brought us Citizens United, came close to constructing an entirely novel interpretation of the Commerce Clause specifically to torpedo ObamaCare, and across-the-board have extended the rights of corporations and the rich over workers, consumers, and the general public.

President Bush did not try to be “reasonable” in his appointments or seek uncontroversial nominees. He nominated the most activist conservative judges he could find, and Senate Republicans refused to let the Democrats filibuster even the worst of them.

Now that the tables have turned, the filibuster has been expanded into a general tool of minority rule. It’s time to end it, once and for all.